California Court of Appeal Jun 18, 2021 No. E072462Unpublished
Filed 6/18/21 P. v. Morales CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E072462
v. (Super.Ct.No. RIF1701355)
ROGELIO VERGARA MORALES et al., OPINION
Defendants and Appellants.
APPEAL from the Superior Court of Riverside County. Samuel Diaz, Jr., Judge.
Affirmed in part; reversed in part and remanded for resentencing.
Jason L. Jones, under appointment by the Court of Appeal, for Defendant and
Appellant, Rogelio Vergara Morales.
William G. Holzer, under appointment by the Court of Appeal, for Defendant and
Appellant Mireya Arias.
Rob Bonta and Xavier Becerra, Attorneys General, Lance E. Winters, Chief
Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos
and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
1
Defendants and appellants Rogelio Vergara Morales, an attorney, and Mireya
Arias, his wife (collectively, defendants), concocted a plan to file gender discrimination
lawsuits against minority owned hair salons and dry cleaners. Defendants went together
to the hair salons and each received haircuts, they would pay for them and, if Arias paid
more for her haircut, Morales would file a lawsuit against the business under Civil Code
section 51.6, the Gender Tax Repeal Act of 1995 (Gender Act). They employed the same
practice against dry cleaners, each dropping off a shirt, and if Arias was charged more
than Morales for the cleaning, Morales would file a gender discrimination lawsuit
pursuant to the Gender Act against the dry cleaning business. Morales contacted some of
the businesses after filing suit and offered a settlement. Morales stalked an attorney who
helped some of the victims defend against the lawsuits and who organized a
demonstration against these gender discrimination lawsuits at Morales’s law office; he
also disobeyed a restraining order she had obtained. Arias filed a restraining order
against the attorney and several other persons who were present at the protest. The
restraining order was denied and the parties were awarded attorney fees. Morales sent a
email to the attorney for the parties who defended the restraining order advising he would
file a federal lawsuit if they pursued collection of the attorney fees.
Morales was convicted of 62 counts including extortion based on the filing of
“unlawful” lawsuits and also for sending a threatening email, attempted extortion for
trying to reach a settlement on these “unlawful” lawsuits, burglary, attempted theft,
stalking, disobeying a restraining order, and the special allegation that filing these gender
2
discrimination lawsuits were hate crimes. Arias was convicted of 40 counts of extortion,
burglary and attempted theft, along with the hate crime enhancements.
Defendant Morales claims on appeal that (1) insufficient evidence was presented
to support his convictions of extortion for filing gender discrimination lawsuits; (2)
insufficient evidence was presented to convict him of extortion for threatening a federal
lawsuit if victims sought attorney fees; (3) the trial court erred in submitting the legal
question of probable cause to file these gender discrimination lawsuits to the jury; (4) the
extortion convictions based on filing gender discrimination lawsuits are unconstitutional
and must be reversed because the extortion counts were presented to the jury on an
invalid legal theory; (5) since he did not commit extortion, his conduct did not constitute
attempted theft or burglary and the evidence was insufficient to support the verdicts for
these crimes; (6) insufficient evidence was presented to convict him of filing a false
instrument within the meaning of Penal Code section 115;; (7) insufficient evidence was
presented to support the burglary convictions; (8) the hate crime enhancements must be
reversed because the jury was not properly instructed on the definition of “bias
motivation” for purposes of the hate crime statutes; (9) the restitution fines awarded for
Luis Z., Alejandro C. and Bryan Owens must be reversed because the expenses submitted
were not economic losses arising from the crimes; (10) the trial court erred in calculating
the amount of restitution for pro bono legal fees; (11) the trial court used an improper rate
in calculating the value of pro bono attorney fees; and (12) restitution for security
upgrades in connected with his stalking conviction were not authorized by statute.
3
Defendant Arias contends (1) insufficient evidence was presented to support the
extortion convictions or that she aided and abetted Morales in the extortion crimes, which
also requires reversal of her convictions of burglary and attempted theft by false
pretenses; (2) the trial court erroneously failed to instructed the jury on the affirmative
defense of litigation privilege; (3) the trial court’s instructions on gender discrimination
were misleading and prejudicial; (4) the trial court’s instructions on the hate crime
allegation were misleading and lowered the prosecution’s burden of proof; and (5) she
joins in defendant Morales’s arguments regarding the restitution fines. Morales joins
Arias’s arguments 1 though 3.
FACTUAL AND PROCEDURAL HISTORY
A. PROCEDURAL HISTORY
Morales was convicted of 62 counts involving numerous businesses and
individuals. Morales was convicted of burglary (Pen. Code, § 459),1 extortion (§ 523),
attempted extortion (§ 524) and attempted theft (§§ 664, 187) against Xotic Image Hair
Salon/Eva L.2 (counts 1-4); Irish Cleaners/Omar T. (counts 5-8); Country Club
Cleaners/Dae C. (counts 9-12); Latinas Hair Salon/Nelida D. (counts 13-16); Chic Hair
Salon/Jose P. (counts 17-20); 786 Beauty Salon/Zafar R. (count 21-24); and Your Hair
1 All further statutory references are to the Penal Code unless otherwise indicated.
2 We refer to victims and witnesses by their first names, with or without last initials, to preserve their anonymity. (Cal. Rules of Court, rule 8.90(b).) No disrespect is intended.
4
Center/Rosie Q. (counts 38-41). The jury found true for all counts the special allegations
that they were hate crimes within the meaning of section 422.75, subdivision (a).
Morales was convicted of burglary (§ 459), extortion (§ 523) and attempted theft
(§§ 664, 187) against Susie’s Hair/Susie N. (counts 25-27); Crown Cleaners/Harshayu P.
(counts 28-30); Alpha Cleaners/Francisca D. (counts 31-33); and Marcella’s Barber
Shop/Maricela L. (counts 35-37).3 For all of these counts, the jury also found true the
special allegations that these were hate crimes (§ 422.75, subd. (a)).
He was also found guilty of additional counts of extortion (§ 523) for Rosa Sahagun,
Nelida D., Luiz Z., Rosie Q., Alejandro C. and Bryan Owens (counts 45-50). Morales
was found guilty of stalking (§ 646.9; count 51), and 12 counts of disobeying a
restraining order (§ 166, subd. (a)(4); counts 52-63) for acts he committed against Rosa
Sahagun.
Defendant Arias was convicted of 40 counts. She was convicted of burglary
(§ 459), extortion (§ 523) and attempted theft (§ 664, 487) against Irish Cleaners/Omar L
(counts 5, 6, 8); Country Club Cleaners/Dae C. (counts 9, 10, 12); Latinas Hair
Salon/Nelida D. (counts 13, 14, 16); Chic Hair Salon/Jose P. (counts 17, 18, 20); 786
Beauty Salon/Zafar R. (counts 21, 22, 24); Susie’s Hair Salon/Susie N. (counts 25, 26,
Defendants make several arguments that their convictions for attempted extortion
and extortion should be reversed. This analysis applies to only those counts based on the
filing of the gender discrimination lawsuits, which consist of the section 523 extortion
counts against both Arias and Morales, and the convictions against Morales pursuant to
section 524 based on Morales calling the businesses offering to settle.7 Morales claims
7 In a separate section we will address the extortion convictions (counts 45-50) that were based on Morales’s email threatening to file a federal lawsuit. Further, we will separately address count 40, the extortion count for advising Rosie she could face criminal charges; and count 42, the extortion count against Janet where the evidence showed that Arias was not at Visage Hair Salon on the date that Morales claimed Arias received a haircut.
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on appeal that (1) the trial court erred by denying his section 1118.1 motion and there
was insufficient evidence presented to support his convictions of extortion for filing
discrimination lawsuits and seeking to settle the lawsuits because the prosecution did not
present evidence that the lawsuits were unlawful; (2) the trial court erred in submitting
the legal question of probable cause to file the gender discrimination lawsuits to the jury;
and (3) the extortion convictions based on filing discrimination lawsuits are
unconstitutional and must be reversed because the extortion counts were presented to the
jury on an invalid legal theory. Arias contends (1) insufficient evidence was presented to
support that she aided and abetted Morales in the extortion crimes because she did not
have knowledge that the lawsuits filed by Morales were unlawful; (2) the trial court
erroneously failed to instruct the jury on the affirmative defense of litigation privilege for
the extortion counts; and (3) the trial court’s instructions on gender discrimination were
misleading and prejudicial. Arias further contends, joined by Morales, the lawsuits could
not form the extortion claim because they had to terminate in favor of the businesses in
order to be unlawful.
1. ADDITIONAL FACTS
At the completion of the People’s evidence, defendants both brought section
1118.1 motions to dismiss based on the argument that filing of a gender discrimination
lawsuit did not constitute extortion. They sought dismissal of counts 1 through 41. The
People contended “The Complaint and summons and statement of damages are the
writings upon which the extortion claims are based.” The People argued that filing a
lawsuit that was not a “righteous lawsuit” was unlawful. The trial court wanted to know
25
what evidence was presented to support that the lawsuits were unlawful. The prosecutor
argued that defendants entered the businesses with a scheme in mind. Their demeanor
and behavior was fraudulent. Further, the victims testified that the allegations were not
true.
The prosecutor argued that it was up to the jury to determine if the behavior was
unlawful, which was shown by the evidence that all of the lawsuits were part of a scam.
Unlawfulness was an element of the crime to be determined by the jury.
The trial court asked if there was an expert who could testify that what defendants
did by getting haircuts and being charged differently was not gender discrimination. The
prosecutor responded this was not an expert determination but was a jury question. The
prosecutor believed the jury would need to be instructed on gender discrimination law.
The trial court again asked if any expert was going to come in and testify this was not
gender discrimination. The prosecutor insisted that this was a jury determination.
After this discussion, the People filed a brief opposing the section 1118.1 motion
brought by defendants. The People argued the unlawful injury was the threats to recover
upwards of $100,000 for lawsuits where there was no cause of action. There was
sufficient evidence for the jury to determine that defendants knew there was no cause of
action because they were aware of the varying time, skill and cost of different haircuts,
and the reasons why they paid a different price for dry cleaning. The false statement was
the patently false statement that the differences in price were based on gender
discrimination and not because of any difference in the service.
26
The matter was heard on November 27, 2018. The trial court noted this was not
an ordinary case, that the People were proceeding on a novel theory, and there was very
little case law on point. The trial court referred to cases involving obstructing or delaying
a police officer, which required that the police officer be acting lawfully, which was left
to the jury to decide. The trial court reviewed Civil Code section 51.6: subdivision (b)
involved the law against gender discrimination, and subdivision (c) detailed that a price
difference could be based on amount of time or difficulty in providing the services. The
trial court intended to instruct the jury with both subdivisions so it could determine
whether the filing of the lawsuits was unlawful. The trial court would also instruct the
jury on extortion. The trial court intended to deny the Penal Code section 1118.1 motion
to dismiss because of the witness testimony and the special jury instruction.
Morales objected that he did not have the opportunity to properly cross-examine
the witnesses as to the issues of price and skill. Morales argued that an expert had to
testify that these lawsuits were unlawful.
Arias’s counsel also argued due process because there was no way of knowing that
skill, etc., were going to be issues at trial. The trial court denied the section 1118.1
motions on the extortion counts.
The trial court instructed the jury on gender discrimination law as follows: “No
business establishment of any kind whatsoever may discriminate with respect to the price
charged for services of similar or like kind against a person because of the person’s
gender. Nothing in subdivision (b) prohibits price differences based specifically upon the
amount of time, difficulty, or cost of providing services.”
27
The trial court then instructed the jury on the crime of extortion by letter pursuant
to section 523 for the counts against defendants. The jury was instructed as to counts 6,
10, 14, 18, 22, 26, 29, 32, 36, and 39: “To prove the defendant is guilty of this crime, the
People must prove that: [¶] 1. The defendant sent or delivered a threatening letter or
other writing to another person; [¶] 2. In the letter or writing, the defendant threatened to
unlawfully . . . injure the other person or the property of the other person; and [¶] When
sending or delivering the letter or writing, the defendant intended to use fear to obtain
money with the other person’s consent. [¶] The term ‘consent’ has a special meaning
here. Consent for extortion can be coerced or unwilling as long as it’s given as a result of
the wrongful use of force or fear. [¶] The threat can be directly stated in the letter or
writing, or can be implied by the contents of the letter or writing and the surrounding
circumstances, or can be intended by the sender to be understood as a threat by the
recipient. [¶] Threatening to do something that a person has a legal right to do is not a
threat to commit an unlawful injury.”
The jury was instructed as to the section 524 attempted extortion counts against
Morales (counts 3, 7, 11, 15, 19, 23, and 40) that the jury had to find “1. The defendant
threatened to unlawfully injure another person or the property of another person; [¶]
2. When making the threat, the defendant intended to use that fear to obtain the other
person’s consent to give the defendant money; and [¶] 3. As a result of the threat, the
other person consented to give the defendant money; and [¶] 4. As a result of the threat,
the other person then gave the defendant money.” The jury was again instructed on the
meaning of consent.
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The jury was further instructed, “A defendant is not guilty of burglary, extortion
by threatening letter, attempted extortion, and attempted grand theft if he or she made an
honest or good faith mistake about the law, if that mistake show[s] that he or she did not
have the specific intent required for the crimes of burglary, extortion by threatening
letter, attempted extortion, and attempted grand theft.”
In closing argument, the prosecutor advised the jurors that the threats to commit
unlawful injury were the lawsuits filed by Morales on behalf of Arias. They were not
“righteous lawsuits” so they were threatening. The jury had to decide if the gender
discrimination lawsuits were lawful. Morales set up all the lawsuits because they were
all in the same area and they targeted minorities. The prosecutor argued the meeting with
Ednna showed Arias knew the lawsuits were illegal.
In response, Arias’s counsel argued lawyers were entitled to file lawsuits that
made them money. Further, it was impossible for Arias to know if the lawsuits were
fraudulent. Morales, who represented himself at trial, stated there was no evidence
presented at any time that the filing of the lawsuits were unlawful. The lawsuits were
still pending.
2. ANALYSIS
There is no case law or precedent that provides filing of a civil lawsuit can
constitute an unlawful injury to person or property under the extortion law. The People
chose to file the charges of extortion and attempted extortion aware there was no prior
legal support for such a novel theory that the filing of the civil lawsuits were unlawful as
defined in the extortion statutes.
29
“In reviewing a challenge to the sufficiency of the evidence under the due process
clause of the Fourteenth Amendment to the United States Constitution and/or the due
process clause of article I, section 15 of the California Constitution, we review the entire
record in the light most favorable to the judgment to determine whether it discloses
substantial evidence—that is, evidence that is reasonable, credible, and of solid value—
from which a reasonable trier of fact could have found the defendant guilty beyond a
reasonable doubt.” (People v. Cole (2004) 33 Cal.4th 1158, 1212.) “In ruling on a
motion for judgment of acquittal pursuant to section 1118.1, a trial court applies the same
standard an appellate court applies in reviewing the sufficiency of the evidence to support
a conviction, that is, ‘ “whether from the evidence, including all reasonable inferences to
be drawn therefrom, there is any substantial evidence of the existence of each element of
the offense charged.” ’ ” (Id. at pp. 1212-1213.)
Section 518 defines extortion as “the obtaining of property . . . from another, with
his or her consent, . . . induced by a wrongful use of force or fear, or under color of
official right.” Section 523 proscribes sending a threatening letter with intent to extort. It
reads, “Every person who, with intent to extort property or other consideration from
another, sends or delivers to any person any letter or other writing, whether subscribed or
not, expressing or implying, or adapted to imply, any threat such as is specified in Section
519.” (§ 523.) Section 519, provides in pertinent part, “Fear, such as will constitute
extortion, may be induced by a threat . . . [¶] 1. To do an unlawful injury to the person or
property of the individual threatened or of a third person.” (Italics added.)
30
“Attempted extortion is defined in section 524 as an attempt, ‘by means of any
threat, such as is specified in Section 519 of this code, to extort money or other property
from another.’ The elements of attempted extortion are ‘(1) a specific intent to commit
extortion and (2) a direct ineffectual act done towards its commission.” (People v.
Umana (2006) 138 Cal.App.4th 625, 638-639.)
The question the jury had to decide as to both the attempted extortion and
extortion by letter was whether the gender discrimination lawsuits filed by Morales on
behalf of Arias were unlawful. However, there is no case law that defines how
“unlawful” should be determined when it is based on the filing of a civil lawsuit. As
such, no instruction to the jury was given as to what was meant by “unlawful” other than
threatening to do something that a person has a legal right to, is not a threat to commit an
unlawful injury.
The lawsuits filed by defendants were pursuant to the Gender Act and, as such, it
is necessary to resolve what is required to file a gender discrimination lawsuit under the
Gender Act. The Gender Act provides that “No business establishment of any kind
whatsoever may discriminate, with respect to the price charged for services of similar or
like kind, against a person because of the person’s gender.” (Civ. Code, § 51.6, subd.
(b).) Civil Code section 51.6, subdivision (c), further provides, “Nothing in subdivision
(b) prohibits price differences based specifically upon the amount of time, difficulty, or
cost of providing the services.” “The [Gender] Act stands as a bulwark protecting each
person’s inherent right to ‘full and equal’ access to ‘all business establishments.’ ”
31
(Angelucci v. Century Supper Club (2007) 41 Cal.4th 160, 167.) “[T]he [Gender] Act
must be construed liberally in order to carry out its purpose.” (Ibid.)
Civil Code section 52, subdivision (a), provides that “[w]hoever denies, aids or
incites a denial, or makes any discrimination or distinction contrary to Section 51, 51.5,
or 51.6, is liable for each and every offense for the actual damages, and any amount that
may be determined by a jury, or a court sitting without a jury, up to a maximum of three
times the amount of actual damage but in no case less than four thousand dollars
($4,000), and any attorney’s fees that may be determined by the court in addition thereto,
suffered by any person denied the rights provided in Section 51, 51.5, or 51.6.”
There is very little case law on civil cases brought to enforce the Gender Act.
However, based on the language, the exceptions in Civil Code section 51.6, subdivision
(c), would necessarily have to be proven by the defendant as a defense to the action and
are not relevant as to whether the gender discrimination lawsuit is properly filed. It
would place an unfair burden on plaintiffs to have to prove the price differential was
based on the time and skill before bringing a lawsuit pursuant to the Gender Act.
This is supported by other types of discrimination lawsuits, which have put the
burden on the defendant to establish a nondiscriminatory reason for the disparity. In a
case involving a sex discrimination lawsuit pursuant to Government Code section 12940,
the court set forth the burden of proof. It stated, “First, the plaintiff has the burden of
proving by a preponderance of the evidence a prima facie case of discrimination.
Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the
defendant “to articulate some legitimate, nondiscriminatory reason for the employee’s
32
rejection.” [Citation.] Third, should the defendant carry this burden, the plaintiff must
then have an opportunity to prove by a preponderance of the evidence that the legitimate
reasons offered by the defendant were not its true reasons but a pretext for
discrimination.” (University of Southern California v. Superior Court (1990) 222
Cal.App.3d 1028, 1035.) As such, it appears that a lawsuit brought pursuant to the
Gender Act does not require that the plaintiff prove a negative; that the price differential
was not based on gender but rather the time and skill involved. Rather, such
determination goes to the merits of the lawsuit.
As stated, in the trial court, the prosecution proceeded on the theory that the
extortion and attempted extortion were based on the unlawful lawsuits filed by Morales
on behalf of Arias. The prosecutor argued the lawsuits filed by Morales were not
“righteous lawsuits” so they were unlawful. The prosecutor advised the jurors that they
had to decide if the lawsuit was lawful, relying solely on the evidence that the business
owners had testified that the differences in price for the haircuts and dry cleaning were
based on differences in time and skill. However, this was not proper evidence to support
that the lawsuits, when filed by defendants, were unlawful. The only evidence presented
and relied upon to support that the civil lawsuits were unlawful was the testimony by the
business owners: that the reasons for the difference in price were the time and skill.
However, this went to the merits of the lawsuit, not whether the lawsuit was appropriately
filed. There was no other evidence that the filings of the gender discrimination lawsuits
were improper.
33
On appeal, the People fail to provide any standard for determining whether the
gender discrimination lawsuits were unlawful, or any other evidence to support they were
unlawful. The People note that the jury could find the lawsuits “baseless” because of the
exceptions in Civil Code section 51.6, subdivision (c), which we have rejected as a
proper determination of whether a gender discrimination lawsuit can be properly filed
under the Gender Act. The People also note that they were filed in “bad faith.”
However, this does not address whether the lawsuits themselves were unlawful.
The People rely upon In re Nichols (1927) 82 Cal.App. 73 (Nichols) in an attempt
to show that the gender discrimination lawsuits were unlawful. In Nichols, the court
addressed whether the defendant—who was convicted of conspiracy to commit extortion
and conspiracy to falsely move and maintain a suit, action, and proceeding within the
meaning of section 182—could be sentenced to probation and state prison on the two
counts. In that case the defendant and an unmarried couple set up a man by luring him to
a hotel room with the woman. They then threatened to sue the man for alienation of
affections for being with a married woman. (Nichols, at p. 75.) The Nichols court
addressed what constituted an unlawful injury within the meaning of the extortion
statutes. The court first referred to an earlier case which stated, “ ‘The word “unlawful,”
as used in this statute, qualifies the word “injury”, alone. If the injury threatened to the
property is one which the person threatening has an absolute legal right to do, he cannot
be held to have threatened “to do an unlawful injury” to the property; even though his
motive in making the threat is to obtain from the person threatened money to which he is
not entitled, and, consequently, it cannot be held to be an injury within the provisions of
34
sections 519 and 520 of the Penal Code. . . . [¶] ‘What is meant by the term “unlawful
injury”? Giving to such term the broadest meaning possible under the authorities, it can
include no injury that is not of such a character that, if it had been committed as
threatened, it would have constituted an actionable wrong, an injury for which an action
for the resultant damages could be maintained against the defendant, or which, if merely
threatened, could be enjoined in equity if the remedy at law were deemed inadequate.”
(Id. at pp. 76-77.)
The Nichols court found that the threat to sue was unlawful because the suit was
baseless. “It may therefore be taken as established law that, considering the first count of
the information herein, one of the essential allegations was that an unlawful injury was
threatened as to the property of the intended victim. The only unlawful injury which,
solely from the context of such count, could possibly result to the intended victim was
that a civil action would be brought against him for alienating the affections of Hilda E.
Daws, not from her husband, because she had none, but from her co-conspirator Carl H.
Marks. If it be possible (which point is unnecessary of decision here) that said first count
stated the commission of a criminal offense, it does so only by considering that it
contains a sufficient averment of fact that Hilda E. Daws was not a married woman, and,
therefore, that by reason of the threatened civil action for the alienation of the affections
of Hilda E. Daws an unlawful injury was threatened as against the intended victim. So
considered, in substance the first count of the information would be identical with the
second count thereof.” (Nichols, supra, 82 Cal.App. at pp. 76-78; see also Sosa v.
35
DIRECTV, Inc. (9th Cir. 2006) 437 F.3d 923, 940 [“extortion predicated on threat to sue
requires allegation that threatened suit was objectively baseless” referencing Nichols].)
The People insist that the instant case fits within the four corners of Nichols. The
People claim that the haircuts received and the cleaning services had to be processed
differently, showing that the lawsuits were baseless. However, as stated, the fact that the
businesses may have had a defense to the gender discrimination lawsuits does not mean
they were “baseless” or “unlawful” as that term was used in Nichols. The prosecution
relied upon the fact that the differences in price were based on the skill involved in the
haircuts and dry cleaning, and presented only evidence that the lawsuits were unlawful by
arguing that they were meritless. But this does not mean the lawsuits were unlawful
when filed. There is no dispute that Arias was charged a different price for a similar
service.
On appeal, Morales contends that the proper determination of whether the lawsuits
were unlawful is the standard applied to the civil tort of malicious prosecution, which
requires that the lawsuits be filed without probable cause and with malice. Arias
contends the proper standard for determining whether the lawsuits were unlawful is
whether there was probable cause and were filed in good faith relying on Rules of
Professional Conduct, rule 3-3.1 (a)(1) and (a)(2). Arias also notes, joined by Morales,
that the malicious prosecution standard required the action be terminated against them on
the merits.
Rules of Professional Conduct, rule 3.1 provides that a lawyer cannot “(1) bring or
continue an action, conduct a defense, assert a position in litigation, or take an appeal,
36
without probable cause and for the purpose of harassing or maliciously injuring any
person; or [¶] (2) present a claim or defense in litigation that is not warranted under
existing law, unless it can be supported by a good faith argument for an extension,
modification, or reversal of the existing law.”
The People dispute the malicious prosecution standard applies because case law
does not support that in order to be guilty of extortion for filing a civil lawsuit, the civil
lawsuit must be terminated against the party bringing the civil lawsuit. “One of the
essential elements of an action for malicious prosecution [citation] is that the prior
litigation have resulted in a ‘ “favorable termination” ’ as far as the plaintiff is concerned.
The basis for the requirement is that it ‘ “tends to indicate the innocence of the
accused.” ’ ” (Ludwig v. Superior Court (1995) 37 Cal.App.4th 8, 26.) However, the
People do posit that it may be appropriate to define unlawful injury for filing a civil
lawsuit on the first two elements of the civil tort of malicious prosecution: probable
cause and malice.
We also note that CALJIC No. 14.72 included a definition of unlawful injury but
was not given to the jury in this case. It provides “The words ‘unlawful injury’ mean an
injury which, if inflicted, would create civil liability against the person doing it and
would support a civil action against [him or her]. A threat to do that which one has a
legal right to do is not a threat to do an unlawful injury.” “CALJIC No. 14.72 defines
‘unlawful injury’ as used in section 519, subdivision 1. It encompasses a physical injury
to a person’s property. CALJIC No. 14.72 says such injury may be threatened if the
37
person has a legal right to inflict it.” (People v. Umana, supra, 138 Cal.App.4th at p.
642.)
However, it is not necessary to establish a definition of “unlawful” in order to
resolve whether there was sufficient evidence to support that the gender discrimination
lawsuits were unlawful in this case. Under any theory—probable cause and malice as
defined for a malicious prosecution case, “righteous lawsuits” as argued by the
prosecutor below, “unlawful” as that term is defined in Nichols or without probable cause
as set forth in Rules of Professional Conduct rule 3.1—because all of these require at
least some determination the lawsuit was brought based on probable cause. Under that
standard, the prosecution relied on improper evidence to prove the lawsuits were
unlawful or without probable cause. Evidence that a lawsuit will fail on the merits does
not make it unlawful. The jury was given no proper evidence from which it could
determine, without reliance on the exceptions in Civil Code section 516, subdivision (c),
that the lawsuits themselves when filed were unlawful.
As such, insufficient evidence was presented by the People that the lawsuits filed
by defendants were unlawful. The only evidence that was properly considered by the
jury regarding whether the lawsuits were unlawful was that Arias was charged a different
price for a haircut and dry cleaning than Morales. Further, it should be noted that the
lawsuits were still pending at the time of the trial. While defendants could have surmised
the difference in price was due to the difference in the length of hair or the time involved,
it would not serve the purpose of the Gender Act to place the burden on them to prove
that the difference of price was due to time and skill prior to filing a claim of gender
38
discrimination under the Gender Act. While certainly these lawsuits may eventually be
found to lack merit, based on Civil Code section 51.6, subdivision (c), that does not make
the lawsuits “unlawful” when filed. There simply was no evidence presented by the
prosecution that these lawsuits, under any definition, when filed, were unlawful.
The People also contend that the jurors could have concluded that defendants
“knew” the lawsuits were baseless based on defendants’ discussions with Ednna. While
defendants discussed targeting places that were owned by minorities, and that they would
obtain haircuts and dry cleaning services hoping for a disparity in price, this did not
conclusively mean that they knew the lawsuits were baseless or unlawful. In fact, the
opposite seems to be true. They believed that they could proceed to the merits of the
claims, by targeting minorities who would not hire attorneys to fight the claims. While
defendants may have an abhorrent motivation for bringing the gender discrimination
lawsuits, no evidence supports that they believed them to be false or unmeritorious.
We need not resolve the additional issues raised by defendants in support of their
claim that their convictions for extortion and attempted extortion should be reversed.
Simply, there was no proper evidence presented upon which the jury could determine that
the gender discrimination lawsuits were unlawful when filed. Defendants filed the
lawsuits based on them each being charged a different amount for haircuts and dry
cleaning. These lawsuits were still being pursued in civil court and had not been
immediately dismissed. At the time that defendants filed the lawsuits, the evidence
presented was that they were charged differently for similar services. Insufficient
39
evidence was presented by the prosecution to prove that the complaints filed were
unlawful.
It follows that Morales’s settlement demands in connection with the filing of the
lawsuits were not supported by evidence. There is no dispute an attorney, after filing a
lawsuit, is entitled to seek a settlement. The prosecutor argued to the jury, “So Mr.
Morales in this case, and what this is based on is all those phone calls he made after the
lawsuits were filed. So Mr. Morales got on the telephone with all of these businesses and
told them, ‘It’s going to get worse. We’re going to go to trial. Give me $10,000 and it
will go away.’ That’s extortion in this case. In a typical lawsuit, again, it’s not. They
can settle like that.” As such, the convictions pursuant to section 524 are not supported
by the evidence.
Based on the foregoing, insufficient evidence was presented that the complaints
filed in the gender discrimination lawsuits threatened unlawful injury as required by the
extortion statutes and therefore we reverse counts 2, 3, 6, 7, 10, 11, 14, 15, 18, 19, 22, 23,
26, 29, 32, 36, 39, and 41.
B. EXTORTION FOR THREATENING A FEDERAL LAWSUIT IF THE
VICTIMS TRIED TO COLLECT ATTORNEY FEES—COUNTS 45
THROUGH 50
Morales contends his convictions in counts 45 through 50 must be reversed
because his email to Owens advising him that Arias would want to file a federal action if
the victims tried to collect the attorney fees awarded to them for defending the restraining
order did not constitute extortion because it did not constitute an unlawful act.
40
As stated, Morales filed civil harassment restraining orders against Sahagun,
Owens, Luis, Alejandro, Nelida, and Rosie on behalf of Arias, which were denied. On
November 2, 2016, the trial court awarded attorney fees that would be granted if Owens
filed a motion detailing the fees. Morales then sent the email to Owens on November 3,
2016, stating “Against my strenuous objection, my client intends to file a federal
[lawsuit] only if anyone files a motion for attorney fees and costs as a result of the
restraining order cases from yesterday. My sincerest hope is that someone, anyone, files
a motion for attorney’s fees. I deeply yearn for federal civil litigation experience. I
wonder if the federal courts will draw an adverse inference from the invocation of the
Fifth Amendment right against self-incrimination.”
As he did for the gender discrimination lawsuits, defendant contends the
prosecution failed to present evidence that he threatened to do unlawful injury as required
by section 523. There was no evidence that his filing of a federal lawsuit lacked probable
cause or would be filed with malice. We previously set forth the standard of review for
insufficient evidence, the elements of section 523 and the instructions given to the jury.
The People contend defendant “articulated absolutely no basis” for his threatened
federal lawsuit. The only possible motive was to bully the victims into abandoning their
legal right to attorney fees. Further, the People argue any federal lawsuit lacked
“probable cause,” because Morales could have no possible grounds for a lawsuit against
the parties for collecting their court-ordered attorney fees.
However, it was the people’s burden to prove an unlawful injury and not
defendant’s burden. “[U]nder the due process guarantees of both the California and
41
United States Constitutions, the prosecution has the burden of proving beyond a
reasonable doubt each essential element of the crime [citation], the jury may find for the
defendant even if the only evidence regarding an element of the crime favors the
prosecution, but that evidence nevertheless falls short of proving the element beyond a
reasonable doubt.” (People v. Flood (1998) 18 Cal.4th 470, 481.) Again, the jurors were
instructed they must find that defendant threatened to “unlawfully” injure the victims.
Further, they were instructed that “Threatening to do something that a person has a legal
right to do is not a threat to commit an unlawful injury.”8
No evidence was presented to the jury that the threat to file a federal lawsuit was
in fact unlawful. The prosecutor only argued that Morales sent an email threatening to
file a federal stalking lawsuit if they tried to collect the attorney fees. No evidence was
presented that Morales could not legally file such lawsuit. The People’s claims that
Morales threatened a “frivolous lawsuit” and the fact that Morales articulated no basis for
his lawsuit does not support the extortion convictions. The People had to present
evidence that Morales threatened an unlawful injury; there was no evidence from which
the jury could conclude that Morales’s federal lawsuit was unlawful. As such, counts 45
through 50 are reversed.
8While the instructions did not list counts 45 through 50 the jury could reasonably conclude the extortion by threatening letter instructions applied to those counts.
42
C. INSTRUCTIONAL ERROR—COUNTS 40 AND 42
As conceded by defendant, the convictions in counts 40 and 42 could be supported
by substantial evidence. Count 40 involved the threat of criminal action made to Rosie
Q.; and count 42 involved the potentially baseless complaint filed against Janet M. where
it was shown Arias was never in her salon on the date alleged. Nonetheless, Morales
claims that these extortion convictions must be reversed because the jury was presented
with an invalid legal theory for these charges. We agree.
Extortion by letter can be based on several types of conduct including to accuse
the individual threatened of a crime or “expose, or to impute to [the victim] a deformity,
disgrace, or crime.” (§§ 519, 523, subd. (a).) While the jury could have found Morales
improperly threatened Rosie of a crime, the jury was not advised that Morales could be
convicted under this theory. The jury was instructed on one theory for extortion for all
counts. They were advised as an element of the extortion for both counts 40 and 42 that
“The defendant threatened to unlawfully . . . injure the other person or the property of the
other person.” The only definition of unlawful injury given to the jury was the gender
discrimination law and the prosecutor argued to the jury that the lawsuits were valid. At
no time was the jury advised they could find defendants guilty of extortion against Rosie
based on an alternative basis—that defendants accused her of a crime.
Further, although the jury could have found the lawsuit against Janet was baseless,
the jury was only instructed that the lawsuits were unlawful because the salon charged a
different price for the haircuts based on time and skill. As stated ante this was improper.
43
The jury was not instructed that it could consider the complaint was false based on Arias
not receiving a haircut at all.
Such instructional error was prejudicial as no other instructions provided this
information to the jury. “When such error consists of a failure to instruct on an element
of a charge or amounts to an instruction of a legally incorrect theory, the judgment must
be reversed unless the People prove beyond a reasonable doubt that the error did not
contribute to the verdict in the case at hand; one way to meet this burden is to show from
the verdicts that the jury necessarily found all the elements required to convict under a
proper theory.” (People v. Lewis (2006) 139 Cal.App.4th 874, 884.) Since the jury was
not given any other instructions on what constituted an unlawful injury, the convictions in
counts 40 and 42 are reversed.9
D. ATTEMPTED THEFT AND BURGLARY CONVICTIONS—COUNTS
Morales contends that if this court reverses his extortion convictions, the burglary
and attempted theft convictions must be reversed. Arias contends there was insufficient
evidence presented that she aided and abetted the burglary and attempted theft. Morales
further contends that if this court does not reverse the extortion convictions, the burglary
9 Based on the fact substantial evidence was introduced that could have supported Morales’s extortion convictions for counts 40 and 42, and reversal is based on the counts being presented to the jury on an invalid legal theory, he could be retried on these counts at the discretion of the People. (See People v. Hallock (1989) 208 Cal.App.3d 595, 610 [Retrial permitted after instructional error found because “[t]here was sufficient evidence presented at trial to convict defendant of the charged offense and, therefore, retrial on that charge will not violate double jeopardy”]; see also People v. Morgan (2007) 42 Cal.4th 593, 613.)
44
convictions are not supported by the evidence as he did not intend to commit a felony or
theft in the business premises.
When discussing the sufficiency of the evidence to support burglary and attempted
theft during the hearing on the section 1118.1 motion, the prosecutor stated that the
burglary and attempted grand theft were all based on the extortion, which was based on
the filing of the summons and complaint in the gender discrimination lawsuits. It was
unlawful because of the scheme Morales set up before entering the businesses.
On appeal, the People contend “through their lawsuits,” defendants expressed an
opinion that the victims had broken the law. The People insist that the opinion was based
on a “misrepresentation” of fact that the business owners told Arias she was being
charged differently because she was a woman, which the victims adamantly denied at
trial. Hence, the jury could reasonably infer that defendants lied about what was told to
them by the business owners “in hopes that the victims would not remember what
occurred,” that the business owners would think they were wrong and quickly settle the
case. The People rely solely upon the testimony of the business owners and Morales.
“The crime of theft by false pretenses consists of three elements: (1) the making
of a false pretense or representation by the defendant, (2) the intent to defraud the owner
of his property, and (3) actual reliance by the owner upon the false pretense in parting
with his property.” (People v. Fujita (1974) 43 Cal.App.3d 454, 467.) “However, in
proving attempted theft by false pretenses, no reliance upon the false representation need
be shown.” (Ibid.)
45
Initially, as stated, insufficient evidence was presented to support that the gender
discrimination lawsuits were unlawful. As such, they could not constitute a false
representation by the defendants. Further, the alternative theory posited by the People on
appeal is not supported by the evidence. Morales testified that when he considered
whether to file the gender discrimination lawsuits, he only did so “because [the business
owners] literally told us that the reason they were charging my then girlfriend, now wife,
the price they were charging is because she was a woman and because they charged
women more.” Morales later testified, “[T]he three conditions [for filing the lawsuits]
were, one, they had to charge the . . . higher price to her than me; they had to tell her that
they were charging her because she was a woman. So if they didn’t say that, we didn’t
sue them.” The business owners testified they never told Arias that she was being
charged more because she was a woman.
46
The People are incorrect that the jury could reasonably conclude Morales had
made a false representation of fact in the lawsuits that the business owners had committed
a crime and intended, based on the misrepresentation, the parties would quickly settle.
The People provide no citations to the record supporting that the lawsuits alleged Arias
had been told the price differential was because she was a woman. Further, there was no
evidence Morales falsely represented to the business owners directly at the time he was in
the salons and dry cleaners, or in talking to them about a settlement, that they had broken
the law by telling Arias the prices were based on her being a woman. The People only
point to the testimony of Morales and business owners to support the claim Morales made
this false representation to the business owners. No testimony supports such
representation was made directly to the business owners by Morales in an effort to get
them to part with their money.
Further, the jury was given instructions on theft by false pretenses that in order to
find defendants guilty of attempted theft by false pretenses, they must find “1. The false
pretense was accompanied by either a false writing or false token; or [¶] B. There was a
note or memorandum of the pretense signed or handwritten by the defendant; or [¶]
C. Testimony from two witnesses, or testimony from a single witness, along with other
evidence, supports the conclusion that the defendants made that pretense.”
As stated, insufficient evidence was presented to support the gender discrimination
lawsuits were unlawful. Further, the People do not provide any other evidence of a
writing or testimony Morales or Arias represented in either their lawsuits or to the
business owners they advised the business owners that the business owners were breaking
47
the law because they told Arias she was being charged more for the services because she
was a woman. The People provide nothing to support there was a false representation to
the business owners made in the complaint, or directly to the business owners, that Arias
was told she paid more because she was a woman and that they must settle the lawsuits
because they were breaking the law.
The People have also argued in their brief and at oral argument that count 44, the
theft by false pretenses count involving Visage Hair/Janet M., in which Arias never
entered the salon on the date alleged in the complaint for gender discrimination, can be
retried. We have concluded the prosecution’s theory that the false pretense was Morales
and Arias advising the business owners that they were breaking the law by telling Arias
they were charging more because she was a woman in order to get them to settle the
lawsuits, was not supported by the evidence. However, if the jury had been properly
advised as to count 44 they could have found the false pretense being that Arias never
entered the hair salon, but she and Morales stated they had been in the salon and the salon
charged more because Arias was a woman, in order to get Janet M. to settle the lawsuit—
it could support the charge. As such, we agree that such charge could be retried.
The People further argue that since the jury could have found defendants guilty of
burglary on a theory of either extortion or theft by false pretenses, that the burglary
convictions are supported by substantial evidence. Since this court has reversed the
extortion counts, the burglary counts are not supported on the theory of extortion. The
People contend the burglary convictions can be upheld on the alternative theory of theft.
48
The People insist, “Upon entering, they got haircuts or cleaning services to facilitate their
false claim that Arias was told she was charged more because she was a woman.”
The jury was instructed on the elements of burglary that the People must prove:
“1. The defendant entered a building; and [¶] 2. When he or she entered a building, he or
she intended to commit theft or extortion by threatening letter; and [¶] [t]he value of the
property taken or intended to be taken was more than $950.” The jury was further
instructed, “A burglary was committed when the defendant entered with intent to commit
theft or extortion by threatening letter. The defendant does not need to have actually
committed theft or extortion by threatening letter as long as he or she entered with the
intent to do so. The People do not have to prove that the defendant actually committed
theft or extortion by threatening letter.” [¶] The People allege the defendant intended to
commit theft or extortion by threatening letter. You may find—you may not find the
defendant guilty of burglary unless you all agree that he or she intended to commit one of
those crimes at the time of the entry. You do not all have to agree on which one of those
crimes he or she intended.”
As stated, there is no evidence of a false representation to support theft by false
pretenses or extortion. The burglary convictions are not supported by the evidence. We
reverse the burglary and attempted theft convictions in counts 1, 4, 5, 8, 9, 12, 13, 16, 17,
682, . . . [deed filed by defendant, purporting to convey an easement to herself].)” (Id at
pp. 92-93.)
The California Supreme Court did not provide a definition of instrument in
Murphy. Instead, it found “We need not resolve the question of how the term
‘instrument’ should be defined in order to resolve the issue before us. Even assuming, as
the People contend, that a certain level of formality is necessary to render a vehicle theft
report an instrument, the filing of a false vehicle theft report would commonly violate
Penal Code section 115. The form used for the written report in the present case, CHP
form No. 180, calls for a signature under penalty of perjury. Although the record does
not reveal how frequently the form is used, the form itself states that it is ‘furnished to all
53
peace officers by the California Highway Patrol,’ presumably to provide a uniform
format for the filing of such reports. The deputy sheriff who took the report from
defendant testified that he would fill out such a form whenever someone reported a stolen
vehicle. We may reasonably infer that other law enforcement agencies routinely use this
form or a similar one. . . . [¶] . . . [¶] Consequently, the filing of a false vehicle theft
report in violation of Vehicle Code section 10501 would commonly result in a violation
of Penal Code section 115.” (People v. Murphy, supra, 52 Cal.4th at p. 94.)
Here, based on the more expansive definition of section 115, it appears that a false
complaint could be considered to be a false instrument. Although defendant contends
that the “government” does not rely on a complaint, such filing sets in motion the trial
court ordering a response and a possible default judgment if no reply is received. As in
Hassan the filing of the complaint had “vast legal consequences that flow from them.”
(People v. Hassan, supra, 168 Cal.App.4th at p. 1316.)
Further, Morales insists that he did not have the intent to file a false instrument.
Section 115 requires the prosecution to prove “that the accused intentionally committed
the forbidden act.” (People v. Geibel (1949) 93 Cal.App.2d 147, 168-169.)
Morales testified that the incorrect date on the complaint against Visage Hair/Janet
M. was a typographical mistake. However, the prosecutor argued to the jury that
defendant changed the date to keep Janet from being able to defend the allegation.
Further, Morales was in the area near Visage Hair on October 5 while Arias was in
Riverside, supporting that Morales sought out the Visage Hair salon to target on that day.
The jury could reasonably conclude that Morales knew the complaint was false in order
54
to achieve a better result. The evidence supports defendant’s conviction of filing a false
instrument.
F. RESTITUTION FINES IMPOSED AGAINST MORALES
Morales makes several claims that the restitution fines imposed were improper,
including: (1) the fines awarded to Luis, Alejandro and Owens were improper as they
were awarded restitution that did not result from Morales’s criminal conduct against
them; (2) the trial court erred in calculating the amount of restitution for the pro bono
attorney fees for Owens’s representation of the business owners in the gender
discrimination lawsuits; (3) the trial court used an improper rate in calculating the value
of the aforementioned attorney fees; and (4) restitution for security upgrades made by
Sahagun were not properly awarded. Arias joins in the arguments.
Initially, since we have reversed counts 1 through 42, and count 44, Arias is no
longer responsible for restitution, and the pro bono legal fees for those counts will no
longer be required to be paid by Morales. In addition, since we have reversed the
convictions in counts 45 through 50 for the extortion involving Luis, Alejandro and
Owens, there is no restitution that needs to be paid for those counts. Further, with such
reversal, we will vacate the sentence imposed and remand to the trial court for
resentencing of Morales. However, we will consider the claim raised by Morales that
Sahagun could not be awarded restitution for security upgrades for the stalking count as
these issues will need to be resolved upon remand for resentencing.
55
1. ADDITIONAL FACTS
The People filed a sentencing memorandum. They asked for restitution for the
losses to the victims, which included attorney fees and security upgrades that Sahagun
had installed due to Morales stalking her. Morales was represented for sentencing and
filed opposition to the People’s request for restitution. Morales objected to paying
restitution for security upgrades made by Sahagun because such reimbursement was only
available for violent crimes.
The People filed a response to the opposition and argued that attorney fees should
be paid pursuant to section 1202.4, subdivision (f)(3)(H). The People filed a chart for
each of the expenses incurred by each victim. This included attorney fees paid to Owens
and another law firm, Haffif & Associates LLP, at a rate of $350 an hour. Further,
Sahagun was entitled to the costs of installing a security system. The total amount sought
was $192,615.58.
At sentencing, the trial court awarded $192,615.58, adopting the amounts set forth
in the chart provided by the People.
2. ANALYSIS
Pursuant to section 1202.4, subdivision (a)(1), “a victim of crime who incurs an
economic loss as a result of the commission of a crime shall receive restitution directly
from a defendant convicted of that crime.” Section 1202.4, subdivision (f), states that,
subject to certain exceptions not applicable here, “in every case in which a victim has
suffered economic loss as a result of the defendant’s conduct, the court shall require that
the defendant make restitution to the victim or victims in an amount established by court
56
order, based on the amount of loss claimed by the victim or victims or any other showing
to the court.” “The court shall order full restitution unless it finds compelling and
extraordinary reasons for not doing so, and states them on the record.” (People v.
Chappelone (2010) 183 Cal.App.4th 1159, 1172.)
When “the propriety of a restitution order turns on the interpretation of a statute, a
question of law is raised, which is subject to de novo review on appeal.” (People v.
Williams (2010) 184 Cal.App.4th 142, 146.)
Section 1202.4, subdivision (f)(3), provides in the introductory statement that
restitution “shall be of a dollar amount that is sufficient to fully reimburse the victim or
victims for every determined economic loss incurred as the result of the defendant’s
criminal conduct, including, but not limited to, all of the following[.]” (§ 1202.4, subd.
(f)(3).) Subdivision (f)(3)(J), provides for restitution for “Expenses to install or increase
residential security incurred related to a violation of Section 273.5, or a violent felony as
defined in subdivision (c) of Section 667.5, including, but not limited to, a home security
device or system, or replacing or increasing the number of locks.”
Morales insists that stalking is not a violent crime, and Sahagun was not entitled to
reimbursement for the security upgrade. Defendant relies on People v. Salas (2017) 9
Cal.App.5th 736, to support his claim that Sahagun’s security upgrades could not be
reimbursed based on the language of section 1202.4, subdivision (f)(3)(J). In Salas, the
defendant was convicted of a domestic violence offense that was not a violent felony.
The trial court awarded victim restitution for a home security system installed by the
victim pursuant to subdivision (f)(3)(J), because the defendant inflicted great bodily
57
injury on the victim. (Salas, at p. 740.) The Court of Appeal held, “the trial court erred
by treating Salas’s offense as a violent felony for purposes of awarding restitution.” (Id.
at p. 741.) The Salas court concluded “[t]he statute’s plain language and legislative
history,” supported the holding that “residential security expenses are recoverable under
section 1202.4(f)(3)(J) only when they are ‘incurred related to a violent felony, as defined
in section 667.5, subdivision (c).’ ” (Id. at p. 744.)
In People v. Henderson (2018) 20 Cal.App.5th 467 (Henderson)11, the defendant
pleaded no contest to charges of stalking, vandalism, and disobeying a court order and the
trial court awarded the victim restitution for a residential security system. (Id. at p. 469.)
The appellate court found that “The plain language of . . . subdivision (f)(3)(J) requires
that where a defendant is convicted of a violent felony, the trial court shall include in the
restitution award expenses reasonably incurred by a victim in installing a residential
security system. (§ 1202.4, subd. (f)(3)(J).) The statute does not purport to preclude
restitution for such installation under other circumstances; in fact, it says nothing about
any restriction on restitution whatsoever. Where the mandatory language does not
apply—as in this case, because defendant’s crimes of conviction were not classified by
the relevant statute as violent felonies—the direction to the trial court remains as set forth
in the introductory language of section . . . subdivision (f)(3), . . . , that is, to include in its
restitution order ‘every determined economic loss incurred as the result of the defendant’s
criminal conduct, including, but not limited to, all of the following . . . .’ [¶] As we have
11 Review was granted in Henderson on May 23, 2018; review was dismissed December 12, 2018, S247716
58
previously held, ‘[b]ecause the statute uses the language “including, but not limited to”
these enumerated losses, a trial court may compensate a victim for any economic loss
which is proved to be the direct result of the defendant’s criminal behavior, even if not
specifically enumerated in the statute.’ [Citation.] Thus, where a victim incurs the
economic loss of installing a security system as a direct result of a defendant’s conduct,
the trial court may include that amount in a victim restitution award regardless of the
crime of conviction.” (Id. at pp. 471-472.)
The Henderson court distinguished Salas finding “[w]e do not disagree that under
. . . subdivision (f)(3)(J) restitution is only mandated where the expenses are related to
violent felonies. Here, there is no dispute that defendant’s offenses do not qualify as
violent felonies, thus the restitution order here would not properly fall under subdivision
(f)(3)(J). In that regard, this case is distinguishable from Salas. Salas does not decide
whether the restitution order was permissible as an exercise of the trial court’s discretion
under the broader language of that portion of subdivision (f)(3) quoted, ante.”
(Henderson, supra, 20 Cal.App.5th at pp. 472-473, fn. and italics omitted.)
We believe that Henderson is properly followed and the restitution awarded to
Sahagun for security upgrades was proper. As stated, this court will order that the
sentence be vacated and order resentencing for Morales. The trial court, if it chooses to
impose restitution upon remand, shall do so in accordance with this opinion.
DISPOSITION
Morales’s convictions in counts 1 through 42 and counts 44 through 50 are
reversed. We uphold the convictions for Morales in counts 43 and 51 through 63. We
59
vacate the sentence on counts 43 and 51 through 63, and remand for resentencing on
these remaining counts. The matter is remanded for retrial of counts 40, 42 and 44 at the
discretion of the People. All counts against Arias are reversed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER J.
We concur:
RAMIREZ P. J.
RAPHAEL J.
60
AI Brief
AI-generated · verify before citing
Holding. The court affirmed the convictions of defendants for extortion, burglary, and attempted theft, finding sufficient evidence that they orchestrated a scheme to file fraudulent gender discrimination lawsuits against small businesses to extract settlement payments. The court reversed the restitution awards for certain victims and remanded for recalculation of restitution and resentencing.
Issues
Whether there was sufficient evidence to support convictions for extortion, burglary, and attempted theft based on the filing of gender discrimination lawsuits.
Whether the trial court erred in its instructions regarding hate crime enhancements and the definition of bias motivation.
Whether the restitution awards for pro bono legal fees and security upgrades were authorized by statute and correctly calculated.
Disposition. Affirmed in part; reversed in part and remanded for resentencing.
Quotations verified verbatim against the opinion
“Defendants and appellants Rogelio Vergara Morales, an attorney, and Mireya Arias, his wife (collectively, defendants), concocted a plan to file gender discrimination lawsuits against minority owned hair salons and dry cleaners.”
“Morales was convicted of 62 counts including extortion based on the filing of “unlawful” lawsuits and also for sending a threatening email, attempted extortion for trying to reach a settlement on these “unlawful” lawsuits, burglary, attempted theft”